1 the Prospects for Customary Law in Transitional Justice

The Prospects for Customary Law in Transitional Justice: The Case of Fiji1 Joanna R. Quinn2 Working paper. Please do not cite without permission. Transitional justice has typically relied on a handful of mechanisms, including trials, truth commissions, and reparations programmes, in seeking justice after conflict. In many societies, however, these mechanisms have less salience and value than do traditional practices of justice. Often, this occurs in large part because these transitional justice mechanisms have been imported and the community has simply failed to engage with them. Customary law, on the contrary, is community-based and well-known to the people who use it. And so, while the conventional transitional justice literature has relied on and recommended the use of mechanisms and approaches including trials, tribunals, and reparations schemes, this paper explores the use of an alternative mechanism: customary practices of justice and acknowledgement. The idea is that practices of customary law might reasonably be used in transitional societies, in place of other, “foreign” practices like truth commissions and trials in bringing about the same objectives sought by the mechanisms more often used. This paper considers traditional practices of justice in transitional and pre-transitional societies as a means of bringing about the “transition” sought by scholars and practitioners of transitional justice. 1 A paper prepared for presentation at the Annual Convention of the International Studies Association, 18 March 2011, Montreal. Research for this project was carried out with assistance from the Social Sciences and Humanities Research Council and with archival research assistance from Tamara Hinan. 2 Joanna R. Quinn is Associate Professor of Political Science and Director of the Centre for Transitional Justice and Post-Conflict Reconstruction at The University of Western Ontario. 1 The paper is not, however, without some serious shortcomings—which stem, in part, from the design of the study itself. First, the ethnic composition of Fiji is problematic for this study, because, aside from a brief consideration of the panchayat courts formerly used by Fijians of Indian descent, this paper focuses mainly on the customary practices used by Indigenous Fijians specifically. I am looking here at Indigenous Fijian customary law, although I will demonstrate that it does have somewhat broader applicability. Second, it is the case that Fiji is still in a pre-transition period. And so it is difficult to tell whether it is too soon to begin looking for solutions to affect the illusive transition in Fiji. Fiji has been in a state of “suspended animation”3 since the first of four coups in 1987, and this shows no signs of abating any time soon. The elections originally planned for 2009 have apparently been postponed until 2014.4 Until there is an opportunity for change, in whatever format, the status quo seems as though it will prevail. And so seeking a “transitional” strategy might, in fact, be not only premature but foolish. Still, there are important questions that must be considered: At what point in any given peacebuilding process do we need to intervene?5 Should scholars and practitioners be looking ahead to assess particular strategies well ahead of time? Or should we wait until some future opportunity to begin to sort out what comes next in such communities. One of my interviewees, Joseph Camillo, Executive Director of the Ecumenical Centre for Research, Education and Advocacy (ECREA) told me that the kinds of questions I was asking were important, but he only 3 In medical terminology, suspended animation refers to the slowing of vital functions by external means without resulting in death. 4 “Elections in Fiji not possible before 2014,” [article online] Fiji Broadcasting Corporation, 26 Feb. 2010; available from http://www.radiofiji.com.fj/fullstory.php?id=26085; accessed 13 Feb. 2011. 5 I think here, for example, of Kingdon’s “policy window,” an opening which may occur only rarely and especially unpredictably. See John Kingdon, Agendas, Alternatives, and Public Policies (Boston: Little Brown, 1984), 171- 198. 2 half-jokingly said that I was a few years too early and should come back once “things “ have settled down.6 And so this paper considers customary law in a context that is neither, strictly speaking, “transitional,” nor broadly representative. Certainly, these are not “ideal” conditions in which to test the kinds of ideas advanced in this paper. Yet it is nearly always the case that transitional societies themselves do not represent any kind of ideal type. While problematic in several ways, the paper makes a contribution, nonetheless, to our understanding of the challenges faced in failed states when working toward effecting any real transition. Methodology As I have written elsewhere, I am particularly interested in that facet of any process of coming to terms with the past that facilitates the acknowledgement of events that have taken place.7 Acknowledgement is a necessary but not sufficient condition in the process of rebuilding. That is, societies, and the individuals who make up those societies, must first engage in a process of acknowledgement before any of the other steps, as outlined briefly above, can take place. This means publicly admitting to and accepting a knowledge of the events which have taken place. In many communities, past crimes are simply never discussed. Rather, events and their consequences are left to bubble under the surface. I argue that unless these atrocities are both privately and publicly acknowledged by individuals within a society, the society cannot move forward on the continuum of social rebuilding. As part of a larger, on-going study, I have been engaged since 2004 in an examination and analysis of the use of traditional practices of justice and acknowledgement in Uganda as a 6 Joseph Camilla, Executive Director, Ecumenical Centre for Research, Education and Advocacy (ECREA), interview by author, 29 June 2010, Suva. 7 Joanna R. Quinn, The Politics of Acknowledgement (Vancouver: UBC Press, 2010), 3-4. 3 possible mechanism of transitional justice. I am specifically interested in the role that these processes can and do play in a society’s acknowledgement of past crimes and abuses. And how they are able to succeed where other “Western” approaches, like the truth commission, have failed.8 In June and July 2010, in the beginnings of a broader, comparative study, I conducted similar field research in Fiji Islands. My goal was to see whether customary practices of justice are used in Fiji, and where they are, to seek to understand their similarity to the kinds of practices I have been seeing in Uganda. I sought to answer three questions: first, to determine prevailing attitudes toward the use of these customary mechanisms in the social rebuilding process; second, to evaluate the feasibility of utilizing traditional mechanisms in the context of international law, national regulations and local custom; and, third, to understand how the use of these kinds of traditional mechanisms is affected by differences in conflicts. In total, in Fiji, I conducted 26 in-depth interviews, and significant historical and archival research. My interviewees included academics, government officials including the Solicitor General and the Chief Justice of the Supreme Court, opposition politicians, members of the chiefly community, commonly called the House of Chiefs, members of the NGO community, religious leaders, and others. In all cases, I asked about the continued practice of customary justice, and about the legislation of such practices. The answers they provided have shaped the views expressed in this paper. I should note here that in some cases, it is politically very dangerous for the people to whom I spoke to be named. And so, although I received permission to identify quotations from everyone whom I interviewed, I have chosen not to do so in some cases. Instead, the 8 See Joanna R. Quinn, “The Politics of Acknowledgement: Truth Commissions in Uganda and Haiti,” (Ph.D. diss., McMaster University 2003). 4 interviewees have been variously identified by use of descriptors which are meant to explain their particular role in Fijian society, their political affiliation, or an experience they have had. In most cases, I have presented the comments that the interviewees made in the form of direct quotations, although their names have not been included. In many cases, with the express permission of the interviewee, I have actually attributed a direct quotation. History and Background The Fiji Islands first came to European attention in 1643. Over the next century, they were further explored and documented by now-infamous explorers including Captain James Cook and Lieutenant William Bligh. By 1800, shipwrecked European sailors had begun to inhabit the islands, soon followed by Christian missionaries.9 All of this caused significant upheaval within the Indigenous Fijian communities. Throughout the nineteenth century, there was a “great contest for power” between the traditional rulers of Fiji, effecting the creation of “elaborate confederations with written constitutions and all the rudiments of administrative apparatus, including ministers, assemblies, and bylaws.”10 Owing to bad debt accumulated through violence allegedly perpetrated on US citizens... [the US demanded from] the paramount chief of Fiji, (King) Cakobau... $45,000 in compensation... Cakobau turned to the British for assistance and eventually and reluctantly ceded his country to the UK in return for the payment of outstanding debts and the protection of Fijian interests. And so, on the 10th of October 1874, with the signing of a treaty, ‘The Deed of Cession’, Fiji became a colony of Britain.11 9 For a comprehensive history of the Fiji Islands, see Brij V. Lal, Broken Waves: A History of the Fiji Islands in the Twentieth Century (Honolulu: University of Hawaii Press, 1992). 10 Lal, Broken Waves, 9-10. 11 John E. Davies, “Ethnic Competition and the Forging of the Nation State of Fiji,” The Round Table, 4.

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